There wouldn’t have been Mumbai 1993 and Gujarat 2002 if 1984 guilty were punished, says HS Phoolka

Senior lawyer H S Phoolka is optimistic that the Sajjan Kumar verdict will have a bearing on all mob violence cases, calls for a law without loopholes to tackle such crimes, talks about his experience during the riots, blames the system for institutional authority not being fixed, and says any Congress apology must be sincere

KAUNAIN SHERIFF M: Last month, the Delhi High Court sentenced Sajjan Kumar to life in a 1984 riots case. How significant is the verdict?

It’s symbolic justice; you cannot call it complete justice. According to government figures, 2,733 people were killed during the riots in Delhi alone. So, at least 15,000 to 20,000 people must have been involved in killing them. If 5,000-6,000 had been punished and the conspirators and political leaders had been punished, then we could have called it complete justice. However, at this point, even this symbolism means a lot. I would call it a very, very big victory, not only for the victims, not only for the Sikhs, but for the entire country. We have been able to show that in our country no one is above the law.

Also, it is an important warning, which Justice Muralidhar (who along with Justice Vinod Goel wrote the 207-page Sajjan Kumar judgment) also mentioned in his judgment. It is a warning to those people who commit such crimes satte ke nashe mein (drunk on power)… they will now think that maybe they will have to spend their old age in jail.

People who are in majority in a particular area, they attack a community and then they get political patronage. This kind of violence started from 1984. I have said this many times, if the people guilty in the 1984 riots had been punished, we wouldn’t have seen Mumbai riots of 1993, Gujarat riots of 2002 or Kandhamal, or whatever is happening these days, these lynchings etc.

KAUNAIN SHERIFF M: The 2008 Kandhamal riots, 1993 Mumbai riots and the 2002 Gujarat riots have been mentioned in the Delhi High Court judgment. Justice Muralidhar and Justice Vinod Goel also raised concerns about political patronage to such violence and the lack of laws to tackle them. Is it time to have a specific law for such crimes?

See, our laws are sufficient but, unfortunately, there are many loopholes in them which are exploited and there is no action. We need a law which is detailed and so tight that there are no loopholes left. An attempt was made during the UPA government to make a special law to look into such mob violence and killings. I was also appointed as an advisor to the committee drafting the law. Unfortunately, in spite of my insistence and advice, they came up with a very strict law which never saw the light of the day. But we definitely need a law, not only for religious minorities but one that covers all forms of mob violence.

KAUNAIN SHERIFF M: There are other 1984 cases in court right now. The Jagdish Tytler case is going on. Will the Sajjan Kumar verdict have any bearing on other high-profile cases?

Not only will it have an impact on other 1984 cases, but on all cases of mob violence. Both the judgments are very important. One is the judgment of Justice R K Gauba (of the Delhi High Court, who upheld the jail terms of more than 80 people for their involvement in the 1984 anti-Sikh riots), which also talks about unlawful assembly — that any member of an unlawful assembly, if he knows what crime is happening, even if he has not himself set anything on fire, he is also liable. So that judgment and and now this Sajjan Kumar judgment…This also makes the case against Kamal Nath very strong.

KAUNAIN SHERIFF M: How do you plan to fight the case against Kamal Nath, because there is no chargesheet, no prosecution…?

First of all, there is evidence of Kamal Nath’s presence. The reporter, Sanjay Suri, who saw him at the site submitted his affidavit before the Misra Commission in 1985. Suri was with The Indian Express at the time. He also submitted his affidavit before the Nanavati Commission. There are other witnesses stating that Kamal Nath was present and inciting the mob. Kamal Nath said he was trying to stop the mob. Now, the Justice Gauba judgment would apply here — he was a member of an ‘unlawful assembly’. What was he doing there? If he was trying to stop the mob, why were two Sikh men burnt alive in his presence, why was the gurdwara burnt?

RAKESH SINHA: During the 1984 violence, you too went through a very difficult time. Can you tell us about it?

I had shifted to Delhi in 1981 after completing my law degree from Chandigarh. I got married in 1983, and at the time of the violence my wife was expecting. I was in the high court when we heard that Mrs Gandhi had been shot. This was around 11 am. By noon, everyone had left the court. My wife’s office was in Naraina, I went there around 2.30-3 pm. I was there till about 4.30-5 pm. The city was absolutely normal. People were sad about the assassination, but there was no violence.I picked my wife up and went to my office in Connaught Place. There I was told that my friends, who were visiting me, had left for Punjab. I told my wife we should stop them because Haryana will not be safe, and that nothing can happen in Delhi.

It was 7 pm by now. I stayed in South Extension at the time. On my way home, at the Janpath and Rajpath crossing, a car stopped us. One person came running and said, ‘Sardarji, aage mat jaana, aage Sardaron ko maar rahe hain (Don’t go ahead, they are killing Sikhs).’ I was on my bike. I took an alternative route and reached my house. There my landlord was standing outside. He asked me how did I get home as there was violence everywhere. I saw the gurdwara nearby burning. I don’t know how we managed to reach home that day.

All of November 1, 1984, we were at home. On November 2, the mob attacked our home. Our neighbour was a Sikh transporter. He had a beautiful house. The mob first attacked their house. Not many people knew us in the neighbourhood but the milkman told the mob about us. That is when our house was attacked.

My landlord’s daughter-in-law, a German woman, took us to the second floor of the house. There was a loft there for blankets. She put me and my wife in there, covered us with blankets and locked it… While this was going on, another neighbour, who had a garment factory next door, got scared. He said if this house is set on fire, my factory will burn too. He went to the main road and brought along an Army truck that was passing by. I ran and got onto the truck, I was in chappals. But my wife, who was pregnant, couldn’t. My landlord’s son took her in his car and dropped us at the AIIMS crossing. There I called my friends. One of them was a pilot. They took us in their car. I was made to lie on the floor and was covered with blankets. They took us to Saket.

That night, my pilot friend kept vigil in the entire neighbourhood. A mob gathered. When the Army came, he asked the in-charge to fire to drive the mob away. He said he doesn’t have the orders. He told him, ‘What kind of Armyman are you? This is the order’. So he fired one round in the air and the mob disappeared. That is all that the mob’s commitment was. Two hundred people just vanished. My pilot friend was single-handedly tackling mobs of hundreds of men. But other people were not stopping the mob, they we instigating it.

Later, on November 5 or 6, my pilot friend took us to the airport. The flights were full. My friend insisted that my wife and I be allowed to board the plane. We finally shared a seat in the cockpit. He dropped us at Chandigarh. Today, no one can believe or imagine that this happened in Delhi. Manmohan Singh’s house in Ashok Vihar was also attacked. His son-in-law is a Hindu. He stood in front of the house and said this belongs to me. They took out a list and said this house belongs to a Sikh. The mobs were carrying lists of Sikh houses with them. These lists were taken from the gurdwara committees. The intelligence agencies had to be involved in this. How else could they have got these lists?

The mob which came out on the streets on November 1, they were carrying inflammable powder with them. An untrained person will burn himself while using it. It needs a highly trained person and every mob had one such person in their group. It was a pre-planned operation.

PRITAM PAL SINGH: What led you to take up the case of the victims?

There was a lot of pressure on us from family and friends to stay back in Punjab. So we came to Delhi to pick up our luggage. This was around November 22, 1984. When I was at the high court, some lawyers told me that lawyers are needed in relief camps. I went to the Farsh Bazar relief camp (near Shahdara). Most people there were victims from Trilokpuri. There was hardly any family which had a surviving male member. There were only women and children. Volunteers from an organisation called Nagrik Ekta Manch were looking after the victims. The group comprised professors, journalists… They asked me to help them with the legal process. I told my wife that we are lucky that we are alive, that those people have lost everything and yet we are the ones running away. I told her that if we run away now, we will repent it our entire lives. So I started visiting relief camps and in December that year, I fought my first case.

AMRITH LAL: Apart from Delhi, Sikhs were also killed elsewhere. What happened to those cases?

After Delhi, Kanpur was the worst affected. The official deaths there were 127. The other place was Bokaro, where 76 people were killed. In Misra Commission, Kanpur and Bokaro were covered. Our teams went to the cities as well. Unfortunately, after that, there was so much work in Delhi, I couldn’t visit the places and those cases could not be taken to a logical end. Not one person has been convicted in those other cases. Not one.

MALLICA JOSHI: It has been 34 years since the riots. What has kept you going in this fight?The failures. Every failure infused more energy in us and strengthened our beliefs. I didn’t want to give up as that would mean that there were people in this country who could defeat the law and go scot-free. That was the concern.

AMRITH LAL:In cases of riots, we have been able to pinpoint charges on individuals, but institutional culpability is an issue that has never been addressed properly.

That is very unfortunate. Each and every commission and committee has mentioned the role of police — that it not only failed but also actively participated and colluded with the rioters. But nothing happened to them. The Kapoor-Mittal Committee identified 72 police officers, who either played an active role or were negligent. The Committee recommended that 36 of them were not fit to be in service, yet each of them got two-three promotions. And, among those 36 were officers who retired at the top level. This is not a failure of the judicial system but of the whole system.

PRITAM PAL SINGH: Are you planning to file an application to reopen cases against Jagdish Tytler and Kamal Nath?

The CBI has given a clean chit to Jagdish Tytler on three occasions. However, all of them were rejected by the court. The third clean chit was given in December 2014, after the NDA government came to power. On December 4, 2015, the court rejected it and also directed the CBI to conclude the investigation in two months. It’s been over three years now and the CBI has not concluded the investigation. Things can be fast-tracked only after the chargesheet is filed. We will press on the CBI to conclude the investigation.

As far as Kamal Nath is concerned, the case has not been registered yet. I have drafted a complaint and sent it to the Delhi Sikh Gurdwara Management Committee. Only they can file a case with the SIT, which was constituted by the Central government. The Committee now has to approach the SIT, and recommend to the Home Minister that Kamal Nath’s role be looked into.

SHALINI LANGER: Do you expect an apology from the Congress? And what form should that apology take?

Protecting the life and liberty of citizens is a government’s responsibility. Any government which fails to do so owes an apology to the nation and victims. The Congress was in power when the riots took place, so it owes an apology but it has to be sincere. It doesn’t mean that you apologise and then reward those who conducted the riots.

RAJ KAMAL JHA:In the general election held following the anti-Sikh riots, the Congress won a brute majority with 414 seats. How did that affect justice?Because of the thumping majority, the Congress didn’t bother about any opposition party or leader. If the Opposition had a sizeable number, probably they could have pressed upon the government to take action, as they did in 2005. The Nanavati report was placed in the House at the time. Along with it, the UPA government placed an Action Taken Report, which said there was no need to register any case against Sajjan Kumar and Tytler. The opposition parties raised objection. The CPM, which was then an ally of the UPA, opposed the government. The government registered cases against Tytler and he had to resign from the Cabinet. If the Opposition had a sizeable number in Parliament in 1984, things probably would have been different.

RAJ KAMAL JHA: Following the 2002 Gujarat riots, the Supreme Court stepped in and took up the top cases which accounted for more than 600 deaths. It shifted many cases out of the state and monitored them. Why didn’t the Supreme Court react in a similar manner after 1984?The Supreme Court did not respond at all. I am saying this with full sense of responsibility as a lawyer. There were only a few judges like Justice Dhingra, who convicted people. In spite of strong evidence, the courts acquitted many people. They treated the 1984 cases as normal cases. Justice Gita Mittal (then Acting Chief Justice of the Delhi High Court) reopened five cases in which eyewitnesses were not even examined and the accused were acquitted… This was the first time we saw a proactive judiciary. The other was the constitution of the SIT. Otherwise, the judiciary has not played any active role, rather we had a very bad experience.

In 1990, Sajjan Kumar was arrested by the CBI at 6.45 am. At 10.30 am, the High Court granted him anticipatory bail… After being arrested, anticipatory bail cannot be granted. The judge had the audacity to write in the order that the registrar is directed to call up the CBI at Sajjan Kumar’s house and ask them to release him.

RAHUL SABHARWAL: The statements of three witnesses were pivotal in convicting Sajjan Kumar. How did you keep them motivated?

One of the witnesses had spent nine years in jail (under TADA charges). But she insisted on the prosecution of Sajjan Kumar. She was not afraid at all. Others weren’t either. But the main thing was to provide them security. The CBI team encouraged them a lot and gave them confidence. Secondly, the special public prosecutor also told them he was there for them. Thirdly, the CBI recommended to the court that they should be provided security and we got them security from the Punjab Police. We also put them up at a secure place in Delhi.